22 PROCTOR | June 2015
Magna Carta and beyond
The rule of law 800 years on
There can be no denying that
Magna Carta was, in its way, an
expression of the important idea
that those who govern should
themselves be under the law.
But we should be ready to take all that
we hear [about it] with a grain of salt. In
particular, we should not be beguiled by
the complacent notion that Magna Carta
was a manifestation of the English genius
for constitutional government.
The idea of a government of laws, not of
men, had been around long before 1215.
It was older than Cicero, having been, quite
obviously, the principal inspiration of the
structure of the Roman Republic. And in its
medieval iteration, it was being championed
by Europe’s first law school at the University
of Bologna, for nearly 100 years before King
John met his barons at Runnymede.
1
The truly radical idea, that political authority
comes from the community of the governed,
rather than from divine authority mediated
through the King as God’s anointed, would
not emerge until the end of the 13th Century
of the population.3 Under the Charter, the
King and his barons remained perfectly free
to treat their villeins, who were, of course,
Englishmen, at their will.
In clause 40, the King famously promised:
“To no one will we sell, to no one will we deny
or delay, right or justice.” This did not help
the villeins, or indeed even free men, in the
courts of the barons.
Clause 40 afforded no protection against
the arbitrary power of the barons. At that
time, the barons held their own courts
and administered what they were pleased
to call justice in them. The Charter thus
preserved to the barons, a much exercised
opportunity for irresponsible, arbitrary and
indeed oppressive, government. Further in
this regard, by clause 34, the royal writ of
“Praecipe” was abolished to secure to the
manorial courts of the barons, the monopoly
of suits concerning land.
4
And at this time,
control of land meant control of the economy:
land law was truly the law of the land.
And the Charter was avowedly anti-semitic
in its protection of the barons’ interests, with
clauses 10 and 11 protecting landowners
against the claims of their Jewish creditors.
in the work of John Duns Scotus and
his followers in Scotland and, a little later,
Marsiglio of Padua in Italy.
In sober truth, Magna Carta is a distinctly
more modest milestone in our journey
towards a just society than its enthusiasts
are disposed to acknowledge.
Professor [Theodore] Plucknett said many
years ago that Magna Carta was a political
deal between King John and his barons
designed to preserve the privileges of a tiny
fraction of the population. Professor [Edward]
Jenks, in a famous article debunking what
he called “The Myth of Magna Carta”,2
described the meeting at Runnymede as
“a melodramatic and somewhat tawdry
scene in a turgid and unwholesome drama”.
If we take, for example, the famous promise
in clause 39 that “No free man is to be
arrested, or imprisoned, or disseised, or
outlawed, or exiled, or in any way destroyed,
nor will we go against him, nor will we send
against him, save by the lawful judgement of
his peers or by the law of the land”, we can
see that this promise offered no comfort to
the unfree people, that is, the villeins, who
made up most, perhaps even four-fifths,
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